[Federal Register Volume 62, Number 133 (Friday, July 11, 1997)]
[Rules and Regulations]
[Pages 37131-37133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-18206]


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DEPARTMENT OF THE TREASURY

Customs Service

19 CFR Parts 101 and 122

[T.D. 97-64]


Customs Service Field Organization; Establishment of Sanford Port 
of Entry

AGENCY: Customs Service, Treasury.

ACTION: Final rule.

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SUMMARY: This document amends the Customs Regulations pertaining to 
Customs field organization by establishing a new port of entry at 
Sanford, Florida, and deleting the Sanford Regional Airport from the 
list of user-fee airports. The new port of entry, designated Orlando-
Sanford Airport, is located in Central Florida. This change will assist 
the Customs Service in its continuing efforts to achieve more efficient 
use of its personnel, facilities, and resources, and to provide better 
service to carriers, importers, and the general public.

EFFECTIVE DATE: November 10, 1997.

FOR FURTHER INFORMATION CONTACT: Harry Denning, Office of Field 
Operations, Resource Management Division (202) 927-0196.

SUPPLEMENTARY INFORMATION:

Background

    In 1991 Sanford Regional Airport began operating as a user-fee 
airport. By 1993, a report prepared for the Central Florida Regional 
Airport Board, which manages the airport at Sanford, showed Sanford 
Regional Airport as the fastest growing airport for international 
passenger clearance services in Florida. Applying the criteria used by 
Customs since 1973 for establishing ports of entry (see, Treasury 
Decision (T.D.) 82-37 (47 FR 10137), as revised by T.D. 86-14 (51 FR 
4559) and T.D. 87-65 (52 FR 16328)), to the figures projected by the 
Central Florida Regional Airport Board, Customs believed that 
sufficient justification existed for redesignating the airport facility 
from its user-fee status to that of a port of entry.
    The report projected that in an approximate six-month period in 
1996 the airport would process over 100,000 international passengers. 
(For 1996, the actual number of international passengers processed 
exceeded 272,000.) As Customs criteria specify a minimum annual 
workload of 15,000 international air passengers for establishment of a 
port of entry, the Sanford airport facility clearly met that criterion. 
The modes of transportation serving the port of entry and the minimum 
population base within the immediate service area also are adequate to 
establish a port of entry at Sanford. Accordingly, Customs proposed to 
establish the port of entry in the belief that such a designation would 
help Customs achieve the more efficient use of its personnel, 
facilities, and resources, and provide better services to carriers, 
importers, and the public in Central Florida.
    On June 17, 1996, Customs published a notice of proposed rulemaking 
in the Federal Register (61 FR 30552) that solicited comments 
concerning a proposal to amend Sec. 101.3(b), Customs Regulations (19 
CFR 101.3), by establishing a new port of entry at Sanford, Florida, 
and Sec. 122.15(b), by removing the Sanford Regional Airport from the 
list of user-fee airports.
    The public comment period for the proposed amendments closed July 
9, 1996.

Discussion of Comments

    Five comments were received: Two in favor and three against. A 
discussion of the comments follows:
    Comment: Two commenters argue that there is no present legal 
authority or existing procedure that allows Customs to force any 
airport to become a port of entry against its desire, i.e., without the 
airport itself initiating the request for a change in status, and the 
third commenter argues that since there has been no such request made, 
Customs decision to change the status constitutes an arbitrary 
determination. One of the commenters further argues that the statute 
providing for the rearranging of customs districts (19 U.S.C. 2) 
appears to permit the establishment of ports of entry only in 
connection with replacing another port or ports that have been 
discontinued.
    One of the commenters (a private terminal operator) also states 
that it decided to develop its new international terminal facility at 
Sanford based on that facility remaining a user-fee airport; that to 
change the airport's designation to that of a port of entry could 
completely undermine the operator's legitimate business expectations 
regarding a development project backed by millions of private 
investment dollars, and would frustrate the operator's ability to use 
its facility for the only purpose for which it is economically viable. 
In short, the commenter believes that the establishment of a port of 
entry at the Sanford airport and the termination of the airport's user-
fee status would be grossly and patently unfair and, without 
compensation by the government,

[[Page 37132]]

would amount to an unconstitutional taking.
    Customs Response: The statutory scheme which establishes Customs 
field organization to administer and enforce the customs and related 
laws of the United States is found at 19 U.S.C. 1 and 2, which allow 
for ports of entry, and at 19 U.S.C. 58b, which allows for user-fee 
arrangements at certain small facilities.
    Section 2 of title 19 of the United States Code (19 U.S.C. 2), 
allows for the rearrangement and limitation of districts and the 
changing of locations. This statute, in part, authorizes the President 
from time to time, as the exigencies of the service may require, to 
rearrange, by consolidation or otherwise, the several customs 
collection districts and to discontinue ports of entry by abolishing 
the same or establishing others in their stead. In 1951, the President 
delegated his authority to the Secretary of the Treasury (Exec. Order 
10289 of September 17, 1951, 16 FR 9499, 3 CFR parts 1949-1953 Comp. p. 
787, reprinted in 3 U.S.C. 301 note) who, in 1995, delegated the 
authority to the Deputy Assistant Secretary for Regulatory, Tariff, and 
Trade Enforcement (19 CFR 101.3(a)). Further, unlike the statute 
providing for the establishment of a user-fee facility, this statute 
does not require any local consent in the establishment of a port of 
entry. The criteria Customs employs to determine whether a facility 
should be designated as a port of entry are not regulatory, and were 
published as specified above so that communities seeking new or 
expanded Customs services could justify to Customs the expense of 
maintaining a new office or expanding service at an existing location.
    Customs does not agree with the commenter's argument that the 
statute permits the establishment of ports of entry only in connection 
with the simultaneous replacement of another port or ports that have 
been discontinued. The Secretary has interpreted 19 U.S.C. 2 to provide 
authority to the President and his delegate to establish ports of entry 
without the simultaneous abolition of other ports. See, e.g., T.D. 95-
62 (60 FR 41804, dated Aug. 14, 1995, providing for the port of entry 
at Rockford, Illinois) and T.D. 96-3 (60 FR 67056, dated Dec. 28, 1995, 
providing for the port of entry at Sioux Falls, South Dakota). While 
the Secretary has not abolished ports of entry simultaneously with the 
establishment of these ports of entry, the number of ports of entry has 
actually decreased. Thus, the interpretation of this statute suggested 
by the commenter is contrary to the position of the Treasury Department 
as reflected in longstanding practice and the plain language of the 
statute grants the Secretary, as the President's delegate, the 
authority to determine that the exigencies of the Customs Service 
require that Sanford be designated as a port of entry.
    Section 58b of title 19 of the United States Code (19 U.S.C. 58b), 
entitled ``User Fee for Customs Services at Certain Small Airports and 
Other Facilities,'' provides, in part, that the Secretary may designate 
airports, seaports, and other facilities as recipients of customs 
services on a fee-basis only if he has made a determination that the 
volume or value of business cleared through such facility is 
insufficient to justify the availability of customs services at such 
facility. But when the volume or value of business cleared through such 
a designated user-fee facility reaches such a level justifying the 
availability of customs services at the facility, Customs may make a 
determination concerning that facility's continuing status within 
Customs field organization. This is the circumstance which has overcome 
Sanford; based on its own report, not that of Customs, international 
passenger workload figures are far in excess of those normally 
considered adequate for port of entry status. Accordingly, Customs has 
made a determination that the volume of business cleared through this 
facility is no longer ``insufficient to justify the availability of 
customs services'' at this facility and that Sanford should be 
designated as a port of entry. Concerning port of entry status, it 
should be noted that facilities are usually helped by this designation, 
as they are able to offer permanent and a full range of Customs 
services instead of just temporary and limited ones that are based on a 
user-fee arrangement.
    Concerning the regulatory takings argument advanced, it is Customs 
position that a change in designation of a particular field location 
does not constitute a taking of property for public use.
    Comment: One commenter states that all user-fee airports should be 
treated similarly and that the proposed action threatens all other 
small user-fee airports, such as Daytona Beach and Melbourne, Florida, 
who now may be pushed into port of entry status with its associated 
higher costs. The commenter alleges that unequal and discriminatory 
treatment is being imposed on Sanford; the commenter claims that user-
fee airports at Ft. Myers, Florida and Wilmington, Ohio for years have 
exceeded the minimum criteria for establishing port of entry status, 
whereas, Sanford's status is to be changed based on projected passenger 
counts.
    Customs Response: There is nothing automatic about when a 
facility's designation must be changed into another designation. As 
discussed above, Customs field organization is based on the needs of 
the entire Customs Service, as determined by the Secretary of the 
Treasury.
    Concerning the referenced user-fee airports located at Ft. Myers 
and Wilmington, Customs is currently looking into whether Ft. Myers, 
Florida, should be redesignated as a port of entry; in the case of 
Wilmington, Ohio, Customs has already determined that that location 
does not meet any of the criteria for port of entry status.
    Comment: One commenter claims that because there was no local 
request for port of entry status Customs has de facto established, 
without proper notice, a new, broadly applicable procedure for creating 
new ports of entry, which possibly violates the requirement of 5 U.S.C. 
551 [sic] that each agency publish ``the nature and requirements of all 
formal and informal procedures available.'' The commenter asserts that 
before applying this new procedure in a specific case, Customs should 
publish a general notice alerting the public to the new procedure.
    Customs Response: This comment misinterprets the public information 
requirements of the Administrative Procedure Act (APA) and the 
publication of the criteria for establishing ports of entry. Regarding 
the APA, section 552 of the APA (5 U.S.C. 552) requires, in part, that 
agencies publish in the Federal Register information pertaining to 
descriptions of its central and field organization for informational 
purposes, which Customs does in Part 101 of the Customs Regulations. 
Concerning the notice and public comment procedures of section 553 of 
the APA (5 U.S.C. 553), which applies to agency rulemaking, Customs has 
followed these procedures in its proposal to change the designation of 
Sanford Airport.
    Regarding the publication of the criteria for establishing ports of 
entry, no new procedure for establishing ports of entry has been 
established. As stated above, the authority to designate ports of entry 
is a plenary authority vested in the President or his delegate under 
the provisions of 19 U.S.C. 2. Customs publication of the criteria for 
establishing ports of entry does not operate to inhibit that plenary 
authority to establish ports of entry ``as the exigencies of the 
Service may require,''

[[Page 37133]]

but rather serves to inform those communities interested in obtaining 
such government capabilities to focus their requests for such status on 
the criteria actually utilized by the Treasury Department.

Conclusion

    After analysis of the comments and further review of the matter, 
Customs has determined that Sanford Regional Airport no longer 
qualifies as a small, user-fee facility under the provisions of 19 
U.S.C. 58b, and that Customs needs in the administration and 
enforcement of customs and related laws would best be served by 
establishing Sanford as a port of entry. Accordingly, Customs has 
decided to adopt the proposed amendments to part 101 and 122 of the 
Customs Regulations, published in the Federal Register on June 17, 1996 
(61 FR 30552). However, a delayed effective date is observed because 
this document will serve as the written notice of termination of user-
fee status to the Sanford Regional Airport as required by 
Sec. 122.15(c).

The Regulatory Flexibility Act, and Executive Order 12866

    Pursuant to provisions of the Regulatory Flexibility Act (5 U.S.C. 
601 et seq.), it is certified that these amendments will not have a 
significant economic impact on a substantial number of small entities, 
as these amendments concern the status of only one airport facility. 
Accordingly, these amendments are not subject to the regulatory 
analysis or other requirements of 5 U.S.C. 603 and 604. These 
amendments do not meet the criteria for a ``significant regulatory 
action'' as specified in Executive Order 12866.

List of Subjects

19 CFR Part 101

    Customs duties and inspection, Customs ports of entry, Exports, 
Imports, Organization and functions (Government agencies), Reporting 
and recordkeeping requirements.

19 CFR Part 122

    Air carriers, Aircraft, Airports, Air transportation, Customs 
duties and inspection, Organization and functions (Government 
agencies), Reporting and recordkeeping requirements.

Amendments to the Regulations

    For the reasons stated above, parts 101 and 122 of the Customs 
Regulations (19 CFR parts 101 and 122) are amended as set forth below:

PART 101--GENERAL PROVISIONS

    1. The general authority citation for Part 101 and the specific 
authority for Sec. 101.3 continue to read as follows:

    Authority: 5 U.S.C. 301; 19 U.S.C. 2, 66, 1202 (General Note 20, 
Harmonized Tariff Schedule of the United States), 1623, 1624.

    Section 101.3 and 101.4 also issued under 19 U.S.C. 1 and 58b;
* * * * *
    2. Section 101.3(b)(1) is amended by adding, in appropriate 
alphabetical order, under the state of Florida ``Orlando-Sanford 
Airport'' in the ``Ports of entry'' column and ``T.D. 97-64'' in the 
adjacent ``Limits of port'' column.

PART 122--AIR COMMERCE REGULATIONS

    1. The authority citation for Part 122 continues to read as 
follows:

    Authority: 5 U.S.C. 301; 19 U.S.C. 58b, 66, 1433, 1436, 1459, 
1590, 1594, 1623, 1624, 1644,; 49 U.S.C. App. 1509.

    2. Section 122.15(b) is amended by removing ``Sanford, Florida'' 
from the column headed ``Location'' and, on the same line, ``Sanford 
Regional Airport'' in the column headed ``Name''.

    Dated: March 24, 1997.
George J. Weise,
Commissioner of Customs.
[FR Doc. 97-18206 Filed 7-10-97; 8:45 am]
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